Is government obliged to compensate property owners damaged by climate change and sea-level rise?

Hurricane Michael has given us another lesson in what life will be like in Florida as climate change and sea-level rise worsen.

It’s hard to dispute that a warmer Gulf of Mexico or Atlantic Ocean is fueling stronger storms and higher sea levels. It’s our new reality.

Cities and counties are on the front lines of this reality. They control where and how we build. They control infrastructure, where it is located and what “level of service” it provides. They pay for all this with our tax dollars.

Eric Deady

All of us living in Florida are going to have to confront this reality too. Our stormwater systems are being compromised. Our buildings and facilities are at risk. And we need to confront where the rubber meets the road: how are we going to address roads damaged by more flooding?

We’ve seen the pictures of “sunny day flooding” on the streets and the octopus eerily swimming in a parking lot on Miami Beach, the saltwater King Tides engulfing neighborhoods in the Keys, Hollywood, Fort Lauderdale and Delray Beach and roads “reclaimed” by the Atlantic Ocean in St. Johns County.

We’re just starting to understand what Michael’s storm surge means for roadways in the Panhandle. And this isn’t solely along the coast. We saw how the Santa Fe River in Alachua County rose 15 feet in 36 hours, forcing the closure of sections of I-75 when people were returning home after Hurricane Irma evacuations. If you can’t drive to work, home or school, how are you going to live in a community?

The Law. In new research funded by the National Oceanic and Atmospheric Administration and Sea Grant, we now know that 62 percent of the roadways in the Carolinas, Georgia and Florida are owned and maintained by local governments. A pivotal question is: does a local government have to “keep up” with Mother Nature by raising those roads and providing drainage as flooding becomes more frequent and damaging?

This is a tricky legal question. If the local government doesn’t keep up and you can’t get to your home, does the local government have that choice to stop paying to fix roads that eventually will be underwater most of the year?

The answer is uncertain. In a 2011 state court decision, the answer was maybe.

An appellate court in Northeast Florida found that St. Johns County’s “failure” to maintain a road, cutting off access of people to their properties along Old A1A, could support a claim for compensation to those property owners for diminished value.

A more recent Federal opinion said that government “inaction,” like failing to maintain a road, was not enough to support a compensation claim. More clearly stated, “can I successfully sue my local government and make them raise my road to keep me dry from the increased flooding”?

The cases are murky. But, what all this legal mumbo jumbo means is that the law is unclear. And this question about roads is a proxy for all of our infrastructure. Do local, state and federal governments “have” to adapt? Legally, the answer is probably not.

The Politics. All said, when you pay taxes to government to build and maintain infrastructure, you have the expectation that it will keep you safe and dry. But again, when that reality kicks in, what infrastructure can actually do in certain areas is going to be constrained by future flooding. And it’s going to cost all of us more money.

At what point can government just not afford to fight Mother Nature? Will officials making those tough calls on affordability, thus creating winners and losers, win their next election? At least in one instance, the people of Miami have spoken, supporting the passage of $400 million in bonds (by 57 percent), almost half slated to address sea-level rise. It’s likely we are going to see more of this — bonds, special assessments and other financing to pay for adaptation.

Given new dramatic conclusions from a Special Report of the Intergovernmental Panel on Climate Change urging us to move more aggressively to mitigate the effects of a warming planet, we have to start making these difficult decisions.

While the legal conclusions may not be certain, the political challenges are real. Mother Nature is responding to the emission of greenhouse gases and isn’t waiting for us to build our defenses against rising water.

We just can’t afford to keep debating theaffordabilityquestion. The time to act on mitigation and adaptation is upon us, and it’s going to cost us all something. The cost of doing nothing will be insurmountable.

Erin L. Deady, AICP, Esq. is the President of her firm, Erin L. Deady, P.A., a legal and planning consulting firm working for local governments throughout Florida on climate issues.

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